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Tag Archives: deferred prosecution

Whether or not to grant a conditional discharge for an eligible defendant under G.S. 90-96(a) used to be within the discretion of the trial judge. In 2011, Justice Reinvestment made G.S. 90-96(a) mandatory for eligible defendants who consented to it. Two years later, it was once again made discretionary. Or was it? Continue reading →

The district attorney decides when to defer prosecution. But if that deferral includes probation under G.S. 15A-1341(a1), the court has a role in the process—including what to do in response to a violation of the deferred prosecution agreement. Sometimes the State and the judge are on the same page. Sometimes they aren’t. Continue reading →

Local procedures vary when it comes to deferred prosecutions. In general, there’s nothing wrong with that; the district attorney has broad discretion in the deferred prosecution realm. Lately, though, several people have asked me a particular question related to deferred prosecution procedure: Does the defendant actually plead guilty when the deferral is entered? Continue reading →

If you’ve been dragging your feet about having an old DWI expunged, you had better hurry up. A law enacted last week removes convictions for offenses involving impaired driving from the types of convictions that may be expunged. The change is effective for petitions filed or pending on or after December 1, 2015. So if you are eligible for such an expunction, your window of opportunity is closing fast. Read on to find about the other changes S.L. 2015-150 makes to the state’s DWI laws. Continue reading →

G.S. 90-96 sets out a conditional discharge option for certain drug offenses. A conditional discharge is different from a deferred prosecution. In a conditional discharge program, the defendant is convicted (either after a trial or by pleading guilty), but then placed on probation without the court actually entering judgment in the case. If the defendant succeeds on probation, the court completes a “discharge and dismissal” and the defendant is left without a conviction. If the defendant fails on probation, the court enters judgment and sentences the defendant—often to probation again, but this time regular, post-conviction probation.

I’ve said it before and I’ll say it again: G.S. 90-96 is complicated. I get as many questions about it as any other law. Justice Reinvestment made G.S. 90-96 mandatory for consenting defendants in 2011, but that requirement turned out to be troublesome enough in practice that the law was made discretionary again in 2013 (as described here).

Despite the waxing and waning of G.S. 90-96, similar conditional discharge options have recently popped up elsewhere in the law. In 2013, a 90-96–style conditional discharge was made mandatory for defendants convicted of prostitution for the first time. G.S. 14-204(b). A bill signed into law week, S.L. 2014-119 (H 369), took things even further, authorizing conditional discharge for any misdemeanor or Class H or I felony that would be eligible for a deferred prosecution. This broad conditional discharge authorization is set out in new G.S. 15A-1341(a4). As under the existing statutory deferred prosecution law, a defendant is eligible for a conditional discharge only when the court finds that (1) all victims have been notified, (2) the defendant has not been convicted of any felony or any misdemeanor involving moral turpitude, (3) the defendant has not previously been placed on probation, and (4) the defendant is unlikely to commit another offense other than a Class 3 misdemeanor. New G.S. 15A-1341(a5) grants similar authorization for defendants eligible for drug treatment court. The new law is effective December 1, 2014, and apparently may be applied to any conviction before the court on or after that date, regardless of the date of offense.

The new law includes some additional technical and conforming changes related to conditional discharges. Under amended G.S. 15A-1342, the probation that accompanies the conditional discharge may not exceed two years. Interestingly, that language is written into a statute that applies to all conditional discharges, not just those authorized by the new law (except those for prostitution under G.S. 14-204, which are subject to a one year maximum term). That means the probation period in G.S. 90-96 cases is now capped at two years. Previously I would have said it could be as long as five years, so the two-year limitation is a big change in theory. It may not make much difference in practice, though; my sense is that 12 months is the typical term of probation in a 90-96 case (please correct me if I’m wrong about that).

A change to G.S. 15A-1342(a1) makes clear that supervised probation is authorized for a conditional discharge imposed under new G.S. 15A-1341(a4) (conditional discharge for any misdemeanor or Class H or I felony), (a3) (conditional discharge for prostitution), and (a5) (conditional discharge for drug treatment court). The law makes no mention of G.S. 90-96, perhaps giving rise to an argument that supervised probation is no longer authorized in those cases. I have always assumed that supervised probation is authorized in G.S. 90-96 cases under the general theory that, unless otherwise provided by law, G.S. 90-96 probation is just like any regular probation case. State v. Burns, 171 N.C. App. 759 (2005) (“In the absence of a provision to the contrary, and except where specifically excluded, the general probation provisions found in Article 82 of Chapter 15A apply to probation imposed under [G.S.] 90-96.”). But now that the law makes specific provision for supervised probation for other enumerated types of conditional discharges, G.S. 90-96 becomes conspicuous in its absence. I doubt the legislature intended to de-authorize supervised probation for G.S. 90-96 defendants, however.

Speaking of legislative intent, what was the motivation behind this expansion of the conditional discharge law? I don’t know for sure. An earlier version of the bill styled the change as “conditional discharge in lieu of deferred prosecution,” substituting the former for the latter in G.S. 15A-1341(a1). A benefit of the conditional discharge approach from the State’s point of view—flagged by a legislator in a media report—is that there is a guilty plea in advance “in case they don’t meet the conditions set by prosecutors to have the charge dropped.” In a traditional deferral there is no guilty plea in advance, State v. Ross, 173 N.C. App. 569 (2005)—which sometimes leads to frustration when a defendant who does not satisfy the terms of the agreement ultimately declines to plead guilty. Nevertheless, the final version of the law added the conditional discharge option but left the deferred prosecution option in place, giving prosecutors apparent flexibility to choose between the two options.

I am interested to hear your thoughts on how this broad authorization for conditional discharges might change things in practice. It strikes me as potentially helpful statutory authority to do some of the things people have tried to do with PJCs over the years—sometimes with results that left everyone unhappy. On the other hand, all the sticky questions about revocations and appeals and collateral consequences that arise in the context of G.S. 90-96 will now be expanded to a broader set of cases.

Under G.S. 15A-1341(a1), certain defendants may, with court approval, be placed on probation pursuant to a deferred prosecution agreement. To be eligible for this type of deferred prosecution the defendant must have been charged with a Class H or I felony or a misdemeanor, and the court must make findings that:

Prosecution has been deferred pursuant to a written agreement, with approval of the court, for the purpose of allowing the defendant to demonstrate good conduct;

Each known victim of the crime has been notified of the arrangement by subpoena or certified mail and has been given an opportunity to be heard;

The defendant has not been convicted of any felony or of any misdemeanor involving moral turpitude;

The defendant states under oath that he or she has not previously been placed on probation; and

The defendant is unlikely to commit another offense other than a Class 3 misdemeanor.

Form AOC-CR-610 guides the court through the requisite findings. The longest permissible term of probation for a deferred prosecution case is two years instead of the usual five. G.S. 15A-1342(a). If the defendant completes the deferred prosecution probation term or it is terminated early by the court, the defendant is immune from prosecution on the deferred charges. G.S. 15A-1342(i).

Prosecutors are also free to enter into non-statutory deferred prosecution agreements with defendants, and my sense is that many do (comments welcome on that front). Non-statutory arrangements may not, however, include supervision by the Division of Community Corrections. State v. Gravette, 327 N.C. 114 (1990).

Based on what I’ve heard, practices vary when a deferred prosecution probationer is alleged to have violated the conditions of his or her supervision. In some districts the alleged violation is reported to the court for a hearing; in others, the defendant is referred directly to the district attorney for prosecution. Changes made to the law in 2009 (S.L. 2009-372) helped clear up what ought to happen. Under the new law, violations of the term of a deferred prosecution must be reported to the court as they are in any ordinary probation case. G.S. 15A-1342(a1). A parallel change in G.S. 15A-1344 makes clear that all probationers must receive notice and a hearing under G.S. 15A-1345 before their probation may be revoked. The change corrected what had previously been a disconnect between the first clause of the sentence in G.S. 15A-1344(d) that began “[a] convicted defendant” and the later reference in the same sentence to “charges as to which prosecution has been deferred”—if charges were “deferred,” we wouldn’t be dealing with a “convicted defendant.” The change applies to hearings held on or after December 1, 2009.

With these changes in mind, deferred prosecution probation matters should be handled just like regular, post-conviction probation cases when it comes to extension, modification, and revocation. That’s what the court of appeals said about cases supervised under G.S. 90-96 in State v. Burns, 171 N.C. App. 759 (2005) (“In the absence of a provision to the contrary, and except where specifically excluded, the general probation provisions found in Article 82 of Chapter 15A apply to probation imposed under [G.S.] 90-96.”), and it seems like the same rationale would apply here.

G.S. 90-96 is one of the densest, most used, and most misunderstood statutes on the books. Let’s try to unpack it a little bit.

There are two distinct subsections under which cases may fall — subsections (a) and (a1) — and the two subsections are different in scope and in effect. We’ll start with subsection (a). This is the descendant of the original version of G.S. 90-96. (The statute was enacted in 1971, and at that time, applied only to first convictions for possession of schedule III through VI substances — the inclusion of paraphernalia, schedule II substances, and felony cocaine possession all came later.) Subsection (a) applies to folks with no prior drug or paraphernalia convictions who plead guilty to or are found guilty of (1) misdemeanor possession of Schedule II through VI drugs, (2) possession of drug paraphernalia, or (3) felony possession of less than one gram of cocaine. There are a couple of things to note here. First, it is up to the court whether to allow a defendant the benefit of the statute: the court “may” do so, even if the state thinks that it shouldn’t (though the consent of the defendant is necessary), but it isn’t required to do so, even if the state and/or the defendant think that it should. Second, G.S. 90-96 isn’t limited to guilty plea cases: the court “may” allow a defendant the benefit of the statute whether the defendant pled guilty or was convicted after a trial. (Whether a judge is likely to allow a defendant who goes to trial the benefit of the statute is a separate question, of course.) Third, it appears that at least some judges, in at least some cases, are allowing defendants the benefit of the statute in cases outside the statute’s scope. See, e.g., State v. Hasty, 133 N.C. App. 563 (1999) (involving a defendant who was on probation, purportedly under subsection (a), for PWISD cocaine).

If the court decides to proceed under subsection (a), the disposition of the case is relatively straightforward: there is no immediate adjudication of guilt or entry of judgment. Instead, the judge places the defendant on probation, for whatever time period the court sees fit. The probation may, but need not, include drug education as a condition. Historically, there hasn’t been an AOC form for this, and judges have either tried to modify judgment forms or have created their own forms. However, I understand that the AOC will shortly be releasing a new form to be used for this type of order.

If the defendant violates his probation, the court enters an adjudication of guilt and sentences the defendant under Structured Sentencing. If the defendant successfully completes his probation, the court dismisses the charges and the defendant is left without a conviction. Furthermore, as detailed in subsection (b) of the statute, if the defendant was “not over 21 years of age” at the time of the offense, he may apply for an expunction of the charges. This expunction provision is much broader than that allowed under G.S. 15A-145, which applies only to misdemeanors and only if the defendant was under 18 years of age at the time of conviction.

The other leading subsection of G.S. 90-96 is subsection (a1), which was added in 1981, and which is confusingly drafted. The best way to try to understand it is to compare it to subsection (a). Subsection (a1) is considerably broader than subsection (a). It applies to “any offense included in G.S. 90-95(a)(3),” meaning all simple possession offenses, regardless of drug type or quantity, and to drug paraphernalia offenses. Furthermore, although is is limited to “first conviction[s],” it ignores prior offenses that are more than seven years old for purposes of determining whether a defendant is a first offender, again unlike subsection (a).

The confusing part of subsection (a1) is that it doesn’t completely spell out how qualifying cases are to be resolved. It says that the judge “may” place the defendant on probation — apparently, with or without the consent of the defendant — which must be for at least a year, and which must, absent exceptional circumstances, include drug education. (Note that the latter two requirements are absent from subsection (a), so while subsection (a1) is broader, it is also a bit tougher.) This appears to be probation pursuant to an entry of judgment, unlike the probation available under subsection (a). Subsection (a1) is missing the proviso, “without entering a judgment of guilt,” that is included in subsection (a), and subsection (a1) contains no procedure for entering a subsequent judgment after a violation of probation — it simply provides that probation shall be revoked, suggesting that the original imposition of probation is the judgment.

Furthermore, the statute is not explicit about what happens if a defendant sentenced under subsection (a1) successfully completes probation. Unlike subsection (a), it does not mandate that the court “shall . . . dismiss the proceedings.” And subsection (b), which contains the expunction provisions of the statute, refers only to proceedings dismissed “under subsection (a),” not to cases that fall within (a1). Yet it appears that the General Assembly intended that at least some defendants sentenced under subsection (a1) would be somehow eligible for expunctions — if not, why would subsection (a1) say that defendants who fail to complete their drug education classes be “den[ied] application for expunction”?

The bottom line is that subsection (a) is clear, while subsection (a1) is broader, but not as clear. I’d like to know whether, and how, subsection (a1) is being used in practice — are defendants being put on probation prior to judgment a la subsection (a), or are they being put on probation pursuant to judgment? Are they receiving expunctions? Subsection (a1) may merit clarification by the General Assembly so that defendants who fall within it are treated the same way from district to district.

Since this post is already too long, I’m not going to unpack subsection (e), but it’s worth reading. Essentially, it provides for after-the-fact expunctions for folks who would have been eligible under subsection (a). There are a couple of ambiguities in the statute, including whether the court “may” or “shall” grant an expunction to eligible offenders, and whether there’s an age limit for eligibility. For now, suffice it to say that In re Expungement for Spencer, 140 N.C. App. 776 (2000) answers some of these questions and is the leading case on subsection (e).